Boyd and Repatriation Commission
[2003] AATA 467
•23 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 467
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/963
VETERANS' APPEALS DIVISION ) Re JOAN FRANCES BOYD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M E C Thorpe, MemberDate23 May 2003
PlaceSydney
Decision The decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision that the Applicant is entitled to pension consequent upon the war-caused death of John Welfare Boyd, as and from 29 July 1998. (Sgd) M D ALLEN
...................................
Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - whether a reasonable hypothesis raised by material before Tribunal - hypothesis that dehydration whilst on service in the South West Pacific area led to formation of a kidney stone raised by the material before the Tribunal and conformed to the relevant statement of principles - raised facts not negatived beyond reasonable doubt.
Veterans’ Entitlements Act 1986 - s120, s120A
Repatriation Commission v Deledio 83 FCR 82
Bushell v Repatriation Commission 175 CLR 408
Byrnes v Repatriation Commission 177 CLR 564
REASONS FOR DECISION
Senior Member M D Allen
Dr M E C Thorpe, Member1. By application made the 5 July 2001, the Applicant sought review of a decision by the Respondent that the death of her late husband John Welfare Boyd was not related to his war-service.
2. The deceased veteran died on the 4 December 1973, the certified cause of death being pulmonary embolism following a deep vein thrombosis. It was not disputed by the Respondent that the death of the deceased had as its operative cause surgery for the removal of renal calculi.
3. As the deceased veteran had operational service as that term is defined in Section 6A of the Veterans’ Entitlements Act 1986 (“VEA”) the standard of proof in this matter is that proscribed by subsections 120(1) and (3) VEA. Namely that the Tribunal shall determine that the death of the deceased was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
4. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the service rendered by him. Pursuant to section 120(A) VEA an hypothesis will not be a reasonable hypothesis unless it conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
5. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
6. The manner in which the Tribunal must approach its task where an SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97 namely:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s196B(2) or (11).
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “ reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
7. Exhibit A2 in these proceedings is a statement by the Applicant in which she says:
“7. Around 1948 John also developed attacks of lower back and abdominal type pain which required injections of morphine by the local doctor.
8. He continued to suffer attacks of lower back and abdominal type pain right up until he was treated for kidney stones in 1973. During these attacks he would have difficulty obtaining relief from the pain and as a last resort would call on the doctor to give him pain killing injections. Between 1948 and 1973 there was no investigations carried out to determine the cause of the pain.”
8. At the time of the Applicant’s original claim a medical practitioner employed by the Department of Veterans’ Affairs said regarding the cause of death of the deceased:
“The basic cause of death was Post-Operative Deep Venous Thrombosis, which had caused the Massive Pulmonary Embolism. Deep Venous Thrombosis was a common complication in post-operative conditions. In this case, the operation was for Renal Calculus, which was blocking the left Ureter.”
9. That medical officer also said:
“In this case, Hyperuricaemia and Renal Calculus were the only signs… “
10. In an opinion dated 19 October 1998 Dr Rosen, urologist states, inter alia:
“Although the ureteric calculus became apparent in 1973 when it caused left renal colic and an obstruction to the left ureter requiring a left ureterolithotomy, it is impossible to state for how long the stone could have been present in the kidney.
It is my experience that the stone could have been there for many years before migrating to obstruct the kidneys.
The stone is an uric acid stone, but people can form uric acid stones without having hyperuricaemia or gout.
It is not unreasonable to wonder whether his war years in the Tropics with constant dehydration would not be a powerful predisposing cause of any renal calculus and if indeed he did have an inherent tendency to form calculi, the dehydration would have certainly precipitated it.
It follows therefore, that if the dehydration as a result of war service could have been responsible for the stone formation and the stone could have been present in his kidney for many years before migrating and the fact that he had to have an operation for the stone, it would seem that the war years could well be responsible for the operation and hence as a consequence deep venous thrombosis and massive pulmonary embolism.”
11. There is evidence that the Applicant suffered from backache during his service and that he suffered from malaria. Post war malaria was accepted by the Respondent as a war-caused disease. His army records also show that he served in tropical areas namely the South West Pacific.
12. Although in her statement the Applicant says that the deceased in 1948 developed lower back and abdominal type pain which required injections of morphine by the local doctor, a summary of the deceased’s general practitioner’s clinical notes at a page 51 of exhibit A5 does not disclose any instance of the administration of morphine. Unfortunately the Applicant was not called to give evidence in these proceedings and hence not cross-examined on this point.
13. In his report of 9 April 2002 to the Respondent (exhibit R2) Professor Zwi consultant physician states that there is no reasonable nexus between the deceased’s war service and his death from pulmonary embolus. In dealing with the suggestion that renal calculus had been present for some time prior to the deceased’s surgery he states:
“Nowhere in the records is there any reference to renal colic (renal stone pain) prior to 22/9/73.”
14. Cross-examined, Professor Zwi stated that even if the deceased had received injections of morphine from his general practitioner, morphine is not usually recommended for kidney stone pain as its use may produce spasm. He did concede however that dehydration would increase the tendency to form crystals in the urine (and hence form kidney stones).
15. At the conclusion of evidence on the first day of the hearing in this matter the Tribunal raised with the parties the effect of dehydration upon the formation of kidney stones, the hypothesis advanced being that the deceased having served in tropical areas became dehydrated which in turn lead to the formation of crystals in the urine which in turn lead over time to the formation of a kidney stone.
16. The hypothesis referred to above finds support in a paper by Pak et al in the journal “Kidney International” volume 60 (2001) pp 757-761 where the authors state:
“Uric acid stones are known to form from dehydration, excessive sweating, intestinal alkali loss, and purine over-load or overproduction.”
Similarly in the “Journal of Urology” volume 150(6) 1993 pp 1757-60 Borghi et al note a study that confirmed that high uric acid relative supersaturation was present during occupation in hot temperatures and “that chronic dehydration represents a real lithogenic risk factor mainly for uric acid stones, and adequate fluid intake is recommended during hot occupations.” Copies of these papers were provided to both parties.
17. Exhibit R6 is a report by Professor Zwi dated 20 November 2002. In that report Professor Zwi states:
“The SoP for nephrolithiasis does not include dehydration as a cause. Although dehydration results in a transient increase in the concentration of urate (or uric acid) in the blood, along with all other blood constituents, it does not result in an excess of urate as required by the SoP definitions…
If the renal stones developed during war service and if soldiers were dehydrated while serving in New Guinea, why did it take 26 years to become evident? Dr Rosen says the stone could have been there for many years before migrating (moving) to obstruct the kidney. The fact is, we have no evidence that the stone developed during his war service or within 180 days of his last treatment for malaria in 1947 or 1948.”
18. A more comprehensive report was provided by Dr Breslin, consultant urologist, which report became exhibit R7 in these proceedings. In that report dated 28 March 2003 Dr Breslin states, inter alia:
“It is contended that Mr John Boyd developed uric acid stone disease as a result of dehydration due to war service in the tropical region together with complicating malarial episodes and even possibly resulting from anti-malarial drugs or sulfonamides.
It is then postulated that he had a stone or stones in his kidneys being more or less silent over the next 27 or so years until he was forced to surgery because of a particular stone, which surgery was then complicated by a pulmonary embolus from which he died.
In answer to your specific questions, I would like to reply as follows:
2.Did Mr Boyd suffer from nephrolithiasis. If so, when was the clinical onset of Mr Boyd’s nephrolithiasis?
Mr Boyd suffered from a single kidney stone as far as we know. Nephrolithiasis means kidney stones and he had a kidney stone removed by Dr Kee, as mentioned above.
The clinical onset of his nephrolithiasis happened with the attack of pain in his left flank as noted by his local doctor and by Dr Kee in 1973.
I can find no evidence of a history of renal colic in any of the records that you have provided, other than Mrs Boyd’s statements that he would often lie on his back with his feet on the wall and his knees bent up because of pain. He was given morphine for this. I cannot see any record of that.
The type of pain that is described on these occasions seems more like lumbar back pain rather than renal colic which typically would cause the victim to roll around rather than lie on his back with his knees bent up.
Therefore the clinical onset, is, from the records, September 1973.
3.Is there any evidence to suggest that the late Mr Boyd was dehydrated during his war service?
I presume he was, because he was fighting in the jungle and in the tropics and also suffering from malaria, as many of the troops were.
4.Can dehydration have been responsible for the late Mr Boyd’s kidney stones formation?
Anything is possible, but I believe that this is extremely unlikely. There would be no way of proving this without Mr Boyd having had an x-ray of his urinary tract performed straight after the war. Uric acid stones are radio-lucent anyway [they do not show up on x-ray] except as a filling defect when dye is injected into the blood stream and outlines the kidney.
There is nothing in the previous history to suggest that he had uric acid or other stones in his kidney. Although Dr Rosen stated that the stone could have been present in his kidney for many years before migrating, that, over a period of about three decades seems to me to be a little fanciful to say the least. A more likely scenario would be a uric acid stone developing as Mr Boyd aged...
As I stated, anything is possible and this “lemon pip” could have sat in his kidney causing no trouble for nearly 30 years and then come out and caused colic pain, surgery, subsequent complication and death but it would be highly unlikely in my experience.”
19. Doctor Breslin then continued in his report to state:
“I agree with Dr Rosen’s statement that it is impossible to state for how long the stone could have been present in the kidney. Stones can be present for several years before they cause trouble. However, I consider three decades to be a little beyond the bounds of credulity. Certainly uric acid stones can form without having hyperuricaemia or gout.
My comments with regard to Dr Rosen’s report is that it is highly unlikely that Mr Boyd had a stone in his kidney which stayed there for 30 years, was due to war service, causing dehydration and then led to surgery and subsequent complications with death. Without x-rays performed in the immediate post-war period it is impossible to be totally dogmatic on this point. Of course, anything is possible but this is a highly unlikely situation.
...
With regard to Dr Thorpe’s comment. I have discussed the question of dehydration. Dehydration can certainly cause calculi”.
Doctor Breslin concluded his report by stating:
“As stated previously, the problem in this situation with Mr Boyd is the large time gap.”
20. We have quoted extensively from Dr Breslin’s report in deference to his expertise and the clarity of his report plus the fact we would, on the basis of that report if deciding this matter on the balance of probabilities, be persuaded by it that the Applicant’s claim should fail.
21. That however is not the test here. The hypothesis advanced has been raised on the material before us.
22. The SoP currently in force regarding nephrolithiasis is instrument number 178 of 1995. That instrument was also in force at the time the Repatriation Commission made its original decision on the current claim in this matter. Instrument number 178 of 1995 contains the following definitions:
“Nephrolithiasis (also known as renal calculi) means a condition marked by the presence of kidney stones that consist of calcium salts (predominantly oxalate or phosphate), uric acid, cystine or struvite… attracting ICD code 274.11 or 592.0.
Hyperuricosuria means the excretion of an excessive amount of uric acid in the urine, attracting ICD code 791.9”.
The SoP then goes on to state in paragraph 1(e) that a reasonable hypothesis connecting nephrolithiasis with the circumstances of service will be raised where the veteran is:
“suffering from hyperuricosuria before the clinical onset of signs or symptoms of nephrolithiasis.”
23. In this matter the clinical onset of kidney stones was when diagnosed in, on or about 12 September 1973 see exhibit A5 at page 47. However the material has raised the hypothesis that the deceased’s hyperuricosuria arose during his war service in tropical areas as a result of a lack of hydration. Borghi et al found hyperuricosuria can be a result of occupation in hot temperatures and constant dehydration, causing an increase in uric acid concentration in the urine (hyperuricosuria). The hypothesis therefore conforms to the SoP.
24. Although Dr Breslin’s report has thrown doubt upon the hypothesis there is nothing in the material before us which enables us to say that the hypothesis is unreasonable in the sense discussed by the High Court in Bushell v Repatriation Commission 175 CLR 408 at 414-416 and Byrnes v Repatriation Commission 177 CLR 564 at 570. Nor have the facts upon which the said hypothesis is based been negatived beyond reasonable doubt.
25. The decision under review will therefore be SET ASIDE and the Tribunal substitutes in lieu thereof its decision that the Applicant is entitled to pension consequent upon the war-caused death of John Welfare Boyd, as and from 29 July 1998.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member.
Signed: .......................................................................................
AssociateDate/s of Hearing 28 April 2003
Date of Decision 23 May 2003
Counsel for the Applicant Mr S Kerrigan
Solicitor for the Applicant R L Whyburn and AssociatesAdvocate for the Respondent Ms T McConnell, Department of Veterans’ Affairs
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